SIMON OYARO OMINGO v SAWARN SINGH AND SON LTD [2013] KEELRC 443 (KLR)
The bottom line
#Kenya's Industrial Court ruled an electrician was unfairly dismissed because his employer never heard him out before terminating him.
What this practically means
#Executive summary
#Key legal issues
#Fairness of summary dismissal for gross misconduct
The dismissal was unfair as the reasons were not proved and the employee was not heard
The court considered sections 41, 43, 44 and 45 of the Employment Act. Although the respondent cited gross misconduct over alleged poor workmanship at Mbagathi Hospital, the manager who made that decision (Mugnai) and Ms Alice were not called as witnesses. The respondent's accounts witness could not address the termination reasons. On a balance of probabilities the claimant's account stood materially uncontradicted, so the termination was unfair.
Right to be heard before termination
Hearing is obligatory even in summary dismissal cases
The court held that section 41(2) imposes an obligation to notify the employee and hear representations before termination, applicable whether or not payment in lieu of notice is made and even where gross misconduct is alleged. A notice of termination must be preceded by a hearing on the grounds of misconduct to allow the employee to defend himself.
Set-off of employee debts against terminal dues
The respondent was entitled to deduct the erroneously sent M-Pesa money, the welfare group dues and the unpaid loan
Guided by section 19 of the Employment Act on lawful deductions, the court held that employees who voluntarily join welfare associations or Saccos authorise deductions, and cannot claim their savings on termination without accounting for dues to the collective. The claimant admitted receiving Kshs.21,870.00 by error, a Kshs.5,000 loan and Kshs.7,000 welfare money, totalling Kshs.33,870, which was set off.
Quantum of terminal dues
Notice pay, days worked, leave and overtime admitted were awarded, then set off against debts
Payment in lieu of notice of Kshs.10,000 was unchallenged. The court granted pay for 12 days worked in March (Kshs.4,000), confirmed leave for two years at Kshs.20,000 based on last salary, overtime at Kshs.4,500 and fare at Kshs.300, totalling Kshs.38,800. Deducting Kshs.33,870 left Kshs.4,930.
Legal principles established
#- An employer must notify and hear an employee before termination, including cases of gross misconduct
- The employer bears the burden of proving reasons for termination where these are disputed
- An employer may lawfully deduct amounts authorised by written law, collective agreement or welfare arrangements, and a former employee must make good dues owed to a collective kitty
Court orders
#- 1.A declaration that the termination of the Claimant's employment by the Respondent was unfair
- 2.One month salary as compensation for unfair termination amounting to Kshs.10,000.00
- 3.Payment to the Claimant of a sum of Ksh.4,930.00 plus interest at court rates from the date of judgment till full payment
- 4.Costs of the suit to the Claimant
- Jurisdiction invoked
- Original jurisdiction under the Employment Act (Industrial Court of Kenya)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SIMON OYARO OMINGO v SAWARN SINGH AND SON LTD [2013] KEELRC 443 (KLR)", Case Analysis (2013). Cause 1287 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/443/eng@2013-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.